IMPORTANT – READ CAREFULLY: THIS AGREEMENT (“AGREEMENT”) IS A BINDING CONTRACT BETWEEN YOU (“YOU”) AND: PEBBLE INCORPORATED (“US”), who are the developer and supplier of the Wi-Fi App (“APP”) and the operator of the guest Wi-Fi service in participating locations (“SERVICE”). The App is part of the Service, therefore references to the Service herein also relate to the App.
THIS AGREEMENT GOVERNS YOUR USE OF THE SERVICE AND YOUR DOWNLOAD AND USE OF THE APP IN THE UNITED STATES ONLY, and the content and information provided in the App.
THIS AGREEMENT REQUIRES BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES RATHER THAN JURY TRIALS OR CLASS ACTIONS.
Purpose. The purpose of the Service is to allow you to use the guest Wi-Fi provided in participating locations via the App which you are invited to download when you access the Service through a browser on your mobile device. Your access to the App and the guest Wi-Fi service is anonymous until you optionally choose to sign-in to the app using social media credentials.
PRIVACY AND CONSENT TO RECEIVING ELECTRONIC COMMUNICATIONS
Mobile and Email Communications. YOU AGREE THAT UNLESS YOU OPT OUT WE MAY SEND MARKETING MESSAGES TO YOU FROM US OR ON BEHALF OF PARTICIPATING STORE LOCATIONS, VIA NOTIFICATIONS FROM THE APP (“PUSH NOTIFICATIONS”) IF YOU HAVE ENABLED YOUR DEVICE TO RECEIVE SUCH NOTIFICATIONS REGARDING YOUR USE OF THE APP. Email Communications may be sent to you if you provided your email address. Push Notifications allow you to easily opt out of receiving them at any time by adjusting the permissions in your device Settings. Additionally, if you have logged into the App via a social media platform in which you have allowed us to receive your email address from that platform, then you further agree to receiving marketing emails from us from time to time regarding your use of the App. We will only send such emails to people who have the App installed. You can easily opt out of such email communication by changing your privacy settings in the App.
LEGAL & GENERAL TERMS
You can enjoy additional benefits in the app by optionally signing-in via social media. If you choose to do so, we collect the following additional information according to the social platform you choose to sign-in with:
1. YOUR LICENSE
We grant you a personal, limited, non-exclusive, revocable, non-transferable license, without the right to sublicense, to electronically access and use the Service solely for the purposes set out in the above section. The Service includes any software, programs, documentation, tools, internet-based services, components and any updates (including software maintenance, service information, help content, bug fixes or maintenance releases) thereto provided to you for use with the Service.
While we want you to enjoy the Service, you may not, nor may you permit any third party to do any of the following: (a) access or attempt to access our systems, programs or data that are not made available for public use; (b) copy, reproduce, republish, upload, post, transmit, resell or distribute in any way material from us; (c) permit any third party to use and benefit from the Site via a rental, lease, timesharing, service bureau or other arrangement; (iv) transfer any rights granted to you under this Agreement; (d) work around any of the technical limitations of the Service, use any tool to enable features or functionalities that are otherwise disabled in the Service, or decompile, disassemble or otherwise reverse engineer the Service, except to the extent that such restriction is expressly permitted by law; (e) perform or attempt to perform any actions that would interfere with the proper working of the Service, prevent access to or use of the Service by our other users, or impose an unreasonable or disproportionately large load on our infrastructure; or (f) otherwise use the Service except as expressly allowed under this section.
3. DISCLOSURES AND NOTICES
4. SERVICE PROVIDERS
We use service providers to provide you with many aspects of the Service. Those service providers are express third party beneficiaries of the protections afforded to us that are set out in this Agreement.
5. SUSPENSION OR TERMINATION
We may terminate this Agreement for any reason or no reason at any time upon notice to you. Without limiting the foregoing, we may also suspend your access to the Service if you (a) have violated the terms of this Agreement, (b) pose an unacceptable fraud risk to us, or (c) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct.
6. EFFECT OF TERMINATION
We may, in our sole and absolute discretion without liability to you or any third party, terminate your use of the Service for any reason, including without limitation inactivity or violation of this Agreement or other policies we may establish from time to time. We will not be liable to you for compensation, reimbursement, or damages in connection with your use of the Service.
7. YOUR RIGHT TO TERMINATE
You may terminate this Agreement at any time by uninstalling the App on your mobile device.
You acknowledge that you may need to install future software updates to continue to use the App.
9. OWNERSHIP, TRADEMARKS, IDEAS
The Service and associated software are licensed and not sold to you. The Service and associated software are protected by copyright, trade secret and other intellectual property laws. You acknowledge and agree that we or our service providers own or have the legal right to the title, copyright and other worldwide Intellectual Property Rights in the Service and all copies thereof.
Unless otherwise noted, all materials in the App are protected as the copyrights, trade dress, trademarks and/or other intellectual properties owned, licensed or used by with permission. Logos are registered trademarks and service marks owned and registered by our client and used with permission. Marks in the App represent some of the marks currently owned or controlled in the United States of America and/or in one or more other countries by its licensees. The display of these marks and of notices associated with these marks is not intended to be a comprehensive compilation of all of licensee’s worldwide proprietary ownership rights, and there may be other proprietary rights in one or more countries outside of the United States of America. All rights not expressly granted are reserved. This Agreement does not grant you any rights to the trademarks or service marks appearing in the App. Ownership and rights described herein may belong to Pebble or our client; its logos, registered trademarks and service marks owned and registered by our client and licensed. You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”).
By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place us or any of our service providers under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, that we and our service providers do not waive any rights to use similar or related ideas previously known to us or our service providers or developed by their employees, or obtained from sources other than you.
You will indemnify, defend and hold us and our service providers (and our respective employees, directors, agents, affiliates and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in this Agreement; (b) your wrongful or improper use of the App; (c) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (d) your violation of any law, rule or regulation of the United States of America or any other country; and (e) any other party’s access and/or use of the App with any log-in credentials you have used in the App.
11. REPRESENTATION AND WARRANTIES
You represent and warrant that: (a) you are eligible to register and use the App and have the right, power, and ability to enter into and perform under this Agreement; (b) you will not use the App, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use of the Service, and (c) your primary residence is located in the United States of America or Canada.
12. NO WARRANTIES
The Service is provided on an “AS IS” and “AS AVAILABLE” basis. Use of the Service is at your own risk. To the maximum extent permitted by Applicable law, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, obtained by you from us or through the Service will create any warranty not expressly stated herein. Without limiting the foregoing, we and our service providers (and their respective subsidiaries, affiliates, members, shareholders, directors, officers, employees and agents) do not warrant that the content is accurate, reliable or correct; that the Service will meet your requirements; that the Service will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the Service is free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of the Service is downloaded at your own risk and you will be solely responsible for any damage to your property or loss of data that results from such download. We do not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a store location or other third party through the App or any hyperlinked website or service, or featured in any banner or other advertising, and we will not be a party to or in any way monitor any transaction between you and third-party providers of products or services.
13. LIMITATION OF LIABILITY AND DISCLAIMERS
YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY DISPUTE RELATING TO OR IN CONNECTION WITH YOUR USE OF THE APP OR SERVICES OR WEBSITE OR BREACH OF THIS AGREEMENT IS TO DISCONTINUE YOUR USE OF THE SERVICE AND UNINSTALL THE APP. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE, OUR SERVICE PROVIDERS AND ANY OTHER PARTY (WHETHER OR NOT INVOLVED IN CREATING, PRODUCING, MAINTAINING OR DELIVERING THE SERVICE) AND THE SUBSIDIARIES, AFFILIATES, MEMBERS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS OF EACH PARTY, EXCLUDE ALL LIABILITY AND RESPONSIBILITY FOR ANY AMOUNT OR KIND OF LOSS OR DAMAGE THAT MAY RESULT TO YOU OR A THIRD PARTY (INCLUDING WITHOUT LIMITATION, ANY DIRECT, INDIRECT, CONSEQUENTIAL, RELIANCE OR PUNITIVE LOSS OR DAMAGE OR ANY LOSS OF INCOME, PROFITS, GOODWILL, DATA, CONTRACTS, USE OF MONEY, OR LOSS OR DAMAGE ARISING FROM OR CONNECTED IN ANY WAY TO BUSINESS INTERRUPTION AND WHETHER IN TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), CONTRACT OR OTHERWISE) IN CONNECTION WITH THE SERVICE IN ANY WAY OR IN CONNECTION WITH THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION ACTIONS OR ACTIVITIES RESULTING FROM USE OF RESOURCES PRESENTED IN THE APP, ITS SERVICES, ANY WEBSITES LINKED TO OR REFERENCED FROM THE APP, OR THE MATERIAL ON SUCH WEBSITES, OR USE OF ANY SUBMISSION, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE DUE TO VIRUSES THAT MAY AFFECT YOUR MOBILE DEVICE, COMPUTER EQUIPMENT, SOFTWARE, DATA OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, OR BROWSING THE APP OR YOUR DOWNLOADING OF ANY MATERIAL FROM ANY WEBSITE OR SERVICES LINKED TO OR REFERENCED FROM THE APP.
UNDER NO CIRCUMSTANCES WILL WE OR OUR SERVICE PROVIDERS BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE APP OR THE INFORMATION CONTAINED THEREIN. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR SERVICE PROVIDERS (AND OUR AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, MEMBERS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS) ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE APP; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE APP; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE APP BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE APP; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
TO THE EXTENT ANY OF THE FOREGOING LIMITATIONS ARE FOUND TO BE UNENFORCEABLE TO YOU IN YOUR JURISDICTION, THIS SECTION 13 SHOULD BE CONSTRUED SO AS TO EFFECTUATE THE INTENT OF ITS PROVISIONS TO THE MAXIMUM EXTENT PERMISSIBLE.
14. INTERNATIONAL RESTRICTIONS
The Service is controlled and operated from and in the United States of America and the United Kingdom. We make no representations that the App is appropriate or available for use in other locations outside of the United States of America, Canada and the United Kingdom. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States of America, or are a person or entity with whom such transactions are blocked or denied by the United States government.
15. GOVERNING LAW & DISPUTE RESOLUTION
PLEASE READ THIS ENTIRE SECTION CAREFULLY. IT REQUIRES BINDING ARBITRATION OF MOST DISPUTES INSTEAD OF LITIGATION IN COURT, AND AFFECTS LEGAL RIGHTS THAT YOU MAY OTHERWISE HAVE. IT INCLUDES A CLASS ACTION AND JURY TRIAL WAIVER.
Access to and use of the App and this Agreement are governed by the laws of the State of Connecticut, United States of America, without giving effect to any conflicts of law or choice of laws principles thereof.
YOU HEREBY CONSENT THAT ANY CLAIM, CONTROVERSY, OR DISPUTE RELATED TO OR ARISING OUT OF ACCESS TO AND USE OF THE SERVICES OR WEBSITE, THE ACCOUNT IF YOU CHOOSE TO SIGN-IN, PROGRAMS, AND THIS AGREEMENT (OR THE BREACH THEREOF) – WHETHER BASED IN CONTRACT, TORT, STATUTE, OR OTHER LEGAL THEORY (“DISPUTES”) – SHALL BE RESOLVED BY BINDING CONFIDENTIAL ARBITRATION BEFORE A SINGLE ARBITRATOR. THE ARBITRATION WILL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS ADMINISTRATIVE RULES, AS APPLICABLE, AND ITS CONSUMER ARBITRATION RULES. ALL ARBITRATION HEARINGS OR SIMILAR PROCEEDINGS SHALL BE HELD IN THE CLOSEST METROPOLITAN STATISTICAL AREA TO YOUR PLACE OF RESIDENCE, UNLESS WE AND YOU OTHERWISE AGREE. YOU MAY ALSO ELECT TELEPHONIC PROCEEDINGS OR WAIVE ANY HEARING. THE PAYMENT OF ADMINISTRATIVE AND ARBITRATION FEES AND COSTS WILL BE GOVERNED BY THE AAA CONSUMER ARBITRATION RULES. THIS DISPUTE PROVISION, TO THE EXTENT PERMITTED BY LAW, SURVIVES YOUR TERMINATION BY REMOVING THE APP FROM YOUR DEVICE.
NOTWITHSTANDING THE PREVIOUS PARAGRAPH, WE AND YOU (1) MAY BRING SUIT IN A FEDERAL OR STATE COURT TO ENJOIN INFRINGEMENT OR OTHER MISUSE OF INTELLECTUAL PROPERTY RIGHTS IN THE LIMITED CIRCUMSTANCES DETAILED BELOW; AND (2) SEEK INDIVIDUAL RELIEF IN SMALL CLAIMS COURT FOR DISPUTES WITHIN THE JURISDICTION OF THE SMALL CLAIMS COURT.
CLASS ACTION WAIVER. TO THE FULLEST EXTENT PERMITTED BY LAW, ARBITRATION OF ALL DISPUTES SHALL PROCEED ON AN INDIVIDUAL BASES. BOTH WE AND YOU WAIVE ALL RIGHTS TO ARBITRATION OF DISPUTES AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY.
WE AND YOU FURTHER AGREE THAT DISPUTES MAY NOT BE AGGREGATED OR CONSOLIDATED, UNLESS WE AND YOU OTHERWISE AGREE IN WRITING.
This arbitration clause does not amend or modify any rights or obligations under any agreement or contract that you might have with us or affiliated entities. All DISPUTES within the scope of those agreements, shall be resolved according to the dispute resolution provisions of those agreements.
The AAA Consumer Arbitration Rules are available for review at: https://www.adr.org/aaa/faces/rules (click Rules, then click Consumer Arbitration Rules).
Any arbitral award shall be final and binding and may be enforced by any court of competent jurisdiction.
You understand that, in return for your agreement to this Section, we are able to offer you the use of the App, Services, programs, and the account functionalities after sign-in of the App at the terms designated, and that your assent to this Section is an indispensable consideration to this Agreement. You also acknowledge and understand that, with respect to any DISPUTE:
- YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY;
- YOU ARE GIVING UP YOUR RIGHT TO HAVE A COURT RESOLVE ANY SUCH DISPUTE;
- YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, and
- YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY ARBITRATION OR LAWSUIT INVOLVING ANY SUCH DISPUTE.
This Section is made pursuant to a transaction involving interstate commerce and will be governed by the Federal Arbitration Act, 9 U.S.C.1-16 (“FAA”). Any dispute or controversy concerning the enforceability or scope of the arbitration clause will be resolved pursuant to the FAA, despite any other choice of law provision.
Notwithstanding the foregoing, nothing in this Section shall prohibit you or us from seeking temporary injunctive relief in a court of competent jurisdiction to prevent an imminent or stop an actual breach of this Agreement until an arbitrator can be empaneled and determine whether such temporary relief should continue or be modified or terminated.
16. UNLESS OTHERWISE REQUIRED BY LAW, AN ACTION OR PROCEEDING BY YOU TO ENFORCE AN OBLIGATION, DUTY OR RIGHT ARISING UNDER THIS AGREEMENT OR BY LAW MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES